TOPIC: Lawyer and Law Firm Affiliations; "Of Counsel" Relationships
Between Lawyers and Law Firms; Group Advertising; Firm Names; Letterhead.

DIGEST: Unaffiliated group of lawyers may not advertise themselves collectively
as "The Law Offices at X Square." A law firm may be "of counsel" to
another law firm or to individual lawyers. Lawyers or law firms may state in
advertisements or on letterhead that they are "associated" or "affiliated" with
each other, so long as their relationship is akin to an "of counsel" relationship
and the precise nature of the relationship is fully disclosed in communications
with specific prospective clients whenever such disclosure could be relevant
to the clients.

1. May an otherwise unaffiliated group of lawyers or law firms use letterhead
identifying themselves as "a member firm of the Law Offices at X Square?"

2. May an otherwise unaffiliated group of lawyers and law firms advertise
their services as a group by describing themselves as part of "an association
of independent lawyers and law partnerships" operating under the name
of "The Law Offices at X Square?"

3. May a law firm act as "of counsel" to another law firm or to
individuals?

4. May a law firm describe itself as "associated" or "affiliated" with
another law firm or individual?

OPINION

The scope and meaning of the designation of a lawyer or group of lawyers as "of
counsel" to others, or of one group of lawyers as "associated" with
another group when the two groups are not in partnership, raises numerous questions
of interpretation and raises the fundamental issue of whether clients understand
what they are getting when they retain counsel. The following fact pattern
illustrates ways that designations respecting these types of affiliations may
and should not be used as a matter of professional ethics.

Law firm F subleases office space to two independent attorneys (L and M) who
concentrate in fields of law in which firm F does not have expertise. Firm
F has offered the services of attorneys L and M to clients in the past, while
disclosing their independent status. L and M work in Firm F's law offices,
share electronic research facilities, and engage in joint consultation with
clients, joint investigatory efforts and joint litigation efforts with F, but
they have separate telephone numbers and practice under different names. Firm
F and attorneys L and M wish to reflect their capacity for joint effort on
their letterhead and in local advertising. They propose a letterhead reading:

[FIRM F, or L, or M]

A Member Firm of the Law Offices at X Square

Each attorney or firm would use the same letterhead format while inserting
the firm's or the individual attorney's name on the first line.

In addition, the attorneys propose to describe themselves in advertisements
as follows:

The Law Offices at X Square

An Association of Independent Lawyers and Law Partnerships

[list of attorneys]

I.

The proposed use of the name "The Law Offices at [X Square]" is
governed by EC 2-11, EC 2-13 and DR 2-102(A)(4), (B) and (C). EC 2-11 provides,
in pertinent part:

The name under which a lawyer practices may be a factor in the selection process.
The use of a trade name or an assumed name could mislead non-lawyers concerning
the identity, responsibility, and status of those practicing thereunder. Accordingly,
a lawyer in private practice should practice only under a designation containing
the lawyer's own name, the name of an employing lawyer, the name of one or
more of the lawyers practicing in partnership, or, if permitted by law, in
the name of a professional corporation for the practice of law, which should
be clearly designated as such....

Likewise, DR 2-102(B) provides, in part:

A lawyer in private practice shall not practice under a trade name, a name
that is misleading as to the identity of the lawyer or lawyers practicing under
such name, or a firm name containing names other than those of one or more
of the lawyers in the firm, except that the name of a professional corporation
may contain "P.C." or such symbols permitted by law, and, if otherwise
lawful, a firm may use as, or continue to include in its name the name or names
of one or more deceased or retired members of the firm or of a predecessor
firm in a continuing line of succession.

Both the proposed letterhead and the proposed advertisement use the "trade
name" of "The Law Offices at X Square." As such, they directly
contravene the provisions just quoted. Although use of a trade name based on
location alone would appear less likely to mislead than other trade names,
the Code on its face prohibits all forms of trade names, and opinions construing
the Code have applied that prohibition to locational trade names as well as
other types of trade names. See, e.g., N.Y. City 82-44 (it is improper for
a group of attorneys who share offices and services to engage in a law practice
under the name "The 777 Lawyers Group"); N.Y. City 82-20 (use of
term "store" declared an improper trade name); N.Y. City 82-36 (use
of name "A.B. & Company" or "A.B. Associates" declared
improper).

The inclusion of the names of specific attorneys below the law firm name does
not alter the prohibited nature of the trade name. The rules against use of
trade names are by their terms absolute, not providing room for remediation
through further disclosure. In addition, the names of the attorneys listed
below the name "The Law Offices at X Square" on the letterhead and
in the advertisement are not an integral part of the firm name. On the letterhead,
the identities of the attorneys appearing immediately under "The Law Offices
at X Square" are different for each different lawyer or law firm practicing
from that suite of offices, and in the advertisement the text does not make
clear how the lawyers are affiliated with each other. These approaches do not
eliminate the problems with lack of clarity and capacity to mislead associated
with use of a trade name.*

* The proposed advertisement might also violate EC 2-11 and DR 2-101(K), which
requires that advertising include the name, office address and telephone number
of the attorney and law firm whose services are being offered, insofar as it
does not clearly provide this information for each of the separate service
providers identified in the single grouping.

In providing the foregoing views, we are opining only on matters of ethics.
Questions of law are outside the jurisdiction of this committee, and we offer
no view on the issues of law the proposed descriptions may raise, including,
for example, whether those proposed descriptions constitute protected speech
under the First Amendment of the United States Constitution. See generally
N.Y. City 81-56 (1982).

II.

An alternative possible approach for law firm F and attorneys L and M, depending
on the precise nature of their relationship, might be to enter into mutual "of
counsel" relationships that are expressly denominated as such. Firm F
may become "of counsel" to attorneys L or M and attorneys L or M
may become "of counsel" to firm F, so long as the parties maintain
the requisite ties to support the "of counsel" relationship. Such
an arrangement would permit the group to advertise their affiliation with the
requisite degree of specificity, and to list each other on their individual
stationery while using a label with a known and therefore acceptable clear
meaning.

The Use Of The "Of Counsel" Designation

Pursuant to DR 2-102(A)(4) of the Code of Professional Responsibility:

A. A lawyer or law firm may use. . . letterheads or similar professional notices
or devices, provided the same do not violate any statute or court rule, and
are in accordance with DR 2-101, including the following:

* * *

A lawyer may be designated "Of Counsel" on a letterhead if there
is a continuing relationship with a lawyer or law firm, other than as a partner
or associate....

(Emphasis supplied.)

A "continuing relationship" has been characterized for purposes
of this provision as a "'close, regular, personal relationship'; but a
relationship which is neither that of a partner (or its equivalent, a principal
of a professional corporation) nor,... on the other hand, the status ordinarily
conveyed by the term 'associate,' which is to say a junior non-partner lawyer,
regularly employed by the firm." ABA 90-357 (footnote omitted) (quoting
ABA 330 (1974)). See also N.Y. City 81-3 (1982) ("of counsel" designation
permitted only where there is a close, continuing, regular and personal relationship
or there is a "present day-to-day working familiarity with the affairs
of the law firm in question").

The "of counsel" relationship may not, however, be used to designate
a relationship that arises "by the mere referral of business between firms
or an occasional consulting relationship," N.Y. City 891 (1977); see also
ABA 90-357; ABA 330 (1974); or as a result of consultation on one case, N.Y.
State 262 (1972). Significantly, also, an "of counsel" designation
must mean something more than merely "a relationship involving only occasional
collaborative efforts among otherwise unrelated lawyers or firms." See
ABA 90-357.

These broad definitions provide incomplete guidance about the precise circumstances
in which a relationship will be considered only " occasionally collaborative" as
opposed to "close, continuing, regular and personal." The validity
of describing any arrangement between Firm F and attorneys L and M by use of
the "of counsel" label would depend on their relationships being
of the latter character. Such characteristics of the relationship as the sharing
of space and availability for consultation on a regular basis are strongly
indicative of the requisite closeness of relationship, id., but not conclusive
absent closeness, regularity and a personal dimension in the relationship.
See, e.g., N.Y. City 81-109 (1982) (a relationship that consists primarily
of office-sharing or of forwarding or receiving legal business is not on those
facts alone sufficient to permit the representation that a lawyer is "counsel").

Because the range of relationships that may permissibly fall within the "of
counsel" rubric is extremely broad, the potential for confusion exists.
Clients dealing with lawyers holding themselves as "of counsel" to
one another may reach unwarranted conclusions regarding the nature of the relationship
between the affiliated lawyers, and correspondingly of the existence of attorney-client
relationship itself. Ordinarily, any ambiguity will be dispelled through the
use of written retainer agreements or letters, or through the billing process.
Lawyers in "of counsel" relationships should nevertheless be aware
of the potential for confusion and should take whatever action is necessary
to prevent or rectify any misimpressions that clients may have about precisely
who is representing them.

A Law Firm As "Of Counsel" To Individuals or Another Law Firm

Historically, the ABA had opined that a law firm may not be "of counsel" to
individuals or to another law firm because the continuing relationship required
under DR 2-102(A)(4) was personal in nature. ABA 330 (1974); ABA Inf. 1173
(1971). This Committee had previously followed that view, citing the ABA opinions
without further discussion or analysis. N.Y. City 891 (1977); N.Y. City 81-3.
If that view continued to prevail, it would prevent any identification of Firm
F as counsel to attorneys L and M.

In 1990, however, the ABA revisited this issue and withdrew its prior opinions.
See ABA 90-357. As the ABA explained:

Semantics aside, the Committee's prior opinions do not suggest, and the Committee
does not now perceive, any reason that a firm should not be of counsel to another
firm. Moreover, the Committee held in Formal Opinion 84-351 (1984) that two
law firms could ethically present themselves as "affiliated" or "associated" with
each other, and in Informal Opinion 1315 (1975), the Committee gave its approval
to arrangements whereby two firms effectively became "of counsel" to
each other, by each designating a partner of the other firm as "of counsel" to
itself.

We agree with the ABA in its suggestion that, where a firm sharing space will
be actively involved in the cases and day-to-day affairs of another firm and
is available for consultation and advice on a regular and continuing basis,
the firm can establish the requisite "continuing relationship with a lawyer
or law firm" to support a "counsel" designation under DR 2-102(A)(4).
The logic of this position equally dictates that an individual lawyer may list
a law firm, or even a law firm and another individual, as "of counsel" (so
long as the criteria for use of this designation are met in each instance).
In this narrow respect, this opinion supports a departure from N.Y. City 81-3
and 891. We adhere, though, to prior opinions which state that where the relationship
is one of mere referral it is not a "continuing relationship" under
DR 2-102(A)(4).

If Firm F and attorneys L and M maintain the requisite "continuing relationship," with
each other, their use of the term "of counsel" would constitute appropriate
disclosure that could communicate to current or prospective clients that they
have a formal professional linkage. Even with this label, "the Law Offices
at X Square" would remain an impermissible trade name.

If the "of counsel" designation is employed, the attorneys will
need to keep in mind that for purposes of analyzing conflicts of interest, "of
counsel" relationships are treated as if the "counsel" and the
firm are one unit. "In consequence there is attribution to the lawyer
who is of counsel of all of the disqualifications of each firm, and, correspondingly,
attribution from the of counsel lawyer to each firm, of each of those disqualifications.
In consequence, the effect of two or more firms sharing an of counsel lawyer
is to make them all effectively a single firm, for purposes of attribution
of disqualifications." ABA 90-357. See also Nemet v. Nemet, 112 A.D.2d
359 (2d Dept. 1985), appeal dismissed, 66 N.Y.2d 602 (1986). This principle
would suggest that any conflicts applicable individually to either firm F or
attorneys L and M would be applicable to all.

III.

In the past, this committee has rejected the use of terms like "member" (used
here in the letterhead) and "association" (used here in the advertisement)
in descriptions of relationships between law firms that are not part of a single
partnership, because of those terms' lack of clarity respecting the nature
of the various attorneys' relationships. See, e.g., N.Y. City 81-71 (the use
of the word "association" in describing lawyers' relationship is
improper "because such listings do not convey a sufficiently precise description
of the lawyer's relationship to the listing lawyer or law firm and thus are
misleading"); N.Y. City 82-28 (listing another firm as "affiliated" declared
misleading despite the listing firm's inclusion of a lengthy disclaimer); N.Y.
State 538 (1981) (same); cf. DR 2-102(C).

The ABA has taken a different approach. Construing both the Model Rules and
the Model Code, the ABA has considered the term "associated" to be
susceptible of a particular meaning understandable by potential clients, and
that the use of the term in firm advertising and letterhead is appropriate
when such use conforms to the general meaning of the term. ABA 84-351. According
to the ABA, the type of relationship that is implied by designating another
firm as "associated" is analogous to the ongoing relationship required
by the Model Code (DR 2-102(A)(4)) when using the designation "of counsel."

Thus, under the ABA's reasoning, a lawyer or law firm may list another lawyer
or law firm as an "associate" or "affiliate" in its advertising
and letterhead provided the lawyer or law firms maintain a relationship that
is "close and regular, continuing and semi-permanent, and not merely that
of forwarder-receiver of business. The 'affiliated' or 'associated' firm must
be available to the other firm and its clients for consultation and advice." Id.
Moreover, the "associated" firms are to be treated as one unit for
purposes of conflicts of interest and confidentiality. Id.

The ABA has addressed the possibility that clients might incompletely understand
the nature of firms' associations or affiliations by requiring more detailed
disclosure in communications with individual prospective clients (including
retention letters), at least when such disclosure could be relevant to the
particular client. In those circumstances, the firm must provide full information
concerning the nature of the relationship between the associated or affiliated
firms, including (a) whether personnel from the associated law firm may be
involved in providing the client with services, (b) whether the law firm intends
to share any of its fees with the associated law firm, (c) whether the firm
intends to share any of its profits with the associated law firm, (d) whether
the associated law firms engage in common training or share strategies and
(e) whether the associated firms engage in common operations or simply use
their association as a marketing device. ABA 94-388.

We find the ABA's position to be persuasive. The basic requirement regarding
lawyer advertising under the Model Code is that communications by a lawyer
concerning legal services must not be false, deceptive or misleading. Id.;
DR 2-101(A). So long as the lawyers advertising themselves as "associated" maintain
a relationship analogous to an "of counsel" relationship, and provide
clients with disclosure as to the nature of their association when individual
client circumstances make that information relevant, we believe that the use
of a term other than "counsel" but similarly conveying accurately
the fact of lawyers' affiliation with each other is not misleading. In this
respect, this opinion supports a departure from N.Y. City 81-71, 82-28, and
81-102.

CONCLUSION

Firm F and attorneys L and M may not advertise or employ letterhead using
the trade name "the Law Offices at X Square." However, if Firm F
becomes "of counsel" to L and M and vice versa, and the group maintains
the requisite relationship to support that designation, the three entities
will be able to advertise jointly and indicate an "of counsel" affiliation
with each other. Those entities will also be able to identify themselves as "associated" or "affiliated" with
each other, provided that the requisites for an "of counsel" relationship
are met. Accordingly, we answer Questions 1 and 2 in the negative and Questions
3 and 4 in the affirmative, subject to the limitations set forth above.